CADA :: Comissão de Acesso aos Documentos Administrativos - Law of Access to Administrative Documents - LADA - REGIME DE ACESSO

REGIME DE ACESSO : Law of Access to Administrative Documents - LADA

Law 65/93, of 1993/08/26 modified by law 8/95 of 1995/03/29, by law 94/99 of 1999/07/16 and law 19/2006 of 2006/06/12.

CHAPTER I

General provisions

Article 1

Open administration

Access to administrative documents by the citizens shall be ensured by the Public Administration according to the principles of publicity, transparency, equality, justice and impartiality.

Article 2

Aim

1 - This law regulates the access to documents that relate to the activities of the entities mentioned in Article 3, without prejudice of the regulated in the legislation on the access to information on the environment..
2 - The exercise by the citizens of their right to be informed by the Administration of the progress of proceedings in which they have a direct interest, as well as their right to be informed of the final decisions taken thereupon, are regulated by separate legislation.

Article 3

Scope

1. The documents mentioned in Article 2 are documents which original within originate or are held by organs of either the State or the autonomous regions that perform administrative functions, by organs of either public institutes or public associations, organs of the local authorities, organs of associations or federations of local authorities, as well as other entities that exercise public authority according to the law.
2. Repeled for the law 19/2006 of 2006/06/12 (legislation on the access to information on the environment).

Article 4

Administrative documents

1 - For the purposes of this law:
1. a) administrative document shall mean any support of information, either graphic, sound, visual or computerized, or any record of another nature, elaborated or held by the Public Administration, including files, reports, studies, opinions, minutes, official records, circulars, circular letters, internal orders, internal normative decisions, instructions and guidelines for the interpretation of the law or setting the framework for an activity, as well as other pieces of information;
2. b) named document shall mean any support for information that contains personal data;
3. c) personal data shall mean any information concerning an identified or identifiable natural person, and containing assessments, or judgments of value, or covered by the clause of respect for private life.
2 - For the purposes of this law, the following shall not be deemed to be administrative documents:
1. a) personal notes, sketches or other records of a similar nature;
2. b) documents that do not concern administrative activities, in particular documents concerning the meetings of the Council of Ministers and Secretaries of State, or the preparation of such meetings.

Article 5

Internal and external security

1 - Documents containing information the access to which is considered to create a risk for or be harmful to the State's internal or external security shall be classified according to special legislation and for a strictly necessary period of time, either as documents the access to which is prohibited or as documents the access to which is subject to authorization.
2 - After having been declassified, or once the period of time provided for their classification has expired, the documents mentioned in the preceding paragraph may be freely consulted under the terms of this law.

Article 6

Secret of justice

Access to documents concerning matters covered by the secret of justice is regulated by special legislation.

Article 7

Right of access

1 - Everyone shall have the right of access to information by way of access to non-named administrative documents
2 - The right of access to administrative documents includes both the right to obtain reproductions of the documents and the right to be informed of the existence and the contents thereof.
3 - Where administrative documents are kept in archives, this shall not preclude the exercise at any time of the right of access to such documents.
4 - Access to documents that are instrumental either in proceedings which are undecided or in the preparation of a decision shall be postponed until the decision has been taken or until the proceedings have been discontinued or until one year after their being prepared.
5 - Access to administrative or other enquiries shall be permitted only after the deadline for disciplinary proceedings has expired
6 - Documents referred to in this enactment will be supplied in part where it is possible to separate out information on classified items
7 - Access to documents within the domain of notaries or public registers, documents concerning civil statue or criminal records, documents concerning automatically processed personal data, as well as documents kept in historical archives is regulated in special legislation.

Article 8

Access to named documents

1 - Access to named documents shall, upon advance application, be granted to the person to whom the data concern, as well as to third parties having obtained written authorisation from the person to whom the data concern.undefined
2 - Apart from the cases falling within the provisions of paragraph (1), access to named documents shall, in addition, be granted to third parties having proved that they have a direct, personal and legitimate interest therein
3 - Health data, including genetic data, shall be supplied to the person concerned through a medical practitioner appointed by that person.

Article 9

Correction of personal data

1 - Exercise of the right to bring corrections, to complete or to delete inaccurate, insufficient or excessive personal data shall be subject to the provisions of the legislation concerning automated processing of personal data, with modifications as appropriate.
2 - Only the corrected version of personal data may be used or communicated.

Article 10

Illegal use of information

1 - The Administration may refuse access to documents the disclosure of which puts commercial, industrial secrets or secrets relating to internal life of companies into jeopardy.
2 - It is forbidden to use information without having due respect for copyrights or patent rights; it is also forbidden to reproduce, diffuse or use documents or information therein in such a way as to amount to unfair competition.
3 - Personal data communicated to third parties shall not be used for purposes other than those under which access was authorized, and shall otherwise entail liability for losses and damages under the terms laid down in the law.undefined

Article 11

Publication of documents

1 - The Public Administration shall publish through adequate means:
1. a) any documents, including internal normative decisions, circulars and guidelines, that contain structures for the administrative activity;
2. b) the reference of any documents containing an interpretation of enacted laws or a description of an administrative procedure, including in that reference inter alia the title and date of the documents, the subject and the originator thereof, as well as the place where the documents may be consulted.
2 - Publication of documents and references of documents shall be made at least once every six months and in such a way as to encourage regular access by interested parties.

CHAPTER II

Exercise of the right of access

Article 12

Form of access

1 - Documents may be acceded to by way of:
1. a) on the spot, free of charge consultation;
2. b) reproduction through photocopy or any other technical means including visual or sound means;
3. c) certified copies issued by the administration.
2 - Reproduction pursuant to paragraph 1(b) shall be in one copy and subject to payment by the requesting person of an amount strictly corresponding to the financial costs of both the materials used and the service rendered; a decree-law or a regional legislative decree, as appropriate, will fix the amount of the costs.
3 - Computerised documents shall be transmitted m a way that is intelligible to any person and corresponds rigorously to the contents of the register, without prejudice to the option provided for in paragraph 1(b).
4 - Where there is a risk that reproduction as provided for in paragraph 1 will harm the documents, the interested person, at his expense, shall be entitled to promote manual copy of the document, or its reproduction, in any other non-damaging way.

Article 13

Form of request

Requests for access to documents must be made in writing and contain all references necessary for identifying the document, as well as the name, the address and the signature of the interested person.

Article 14

Responsibility for providing access

In each ministerial department, regional department, local authority, institute and public association there shall be an entity responsible for the implementation of the provisions of this law.

Article 15

Reply from the administration

1 - The entity to whom a request for access to a document was made, shall within a period of ten days:
1. a) communicate the date, place and mode in which the document may either be consulted or reproduced, or a certified copy thereof may be obtained; or
2. b) set out, pursuant both to the provisions of Article 268, paragraph 2, of the Constitution, and the provisions of this law, the reasons why total or partial access to the document is refused; or
3. c) notify that the document is not within its possession and, where it knows of its whereabouts, point out the entity that possesses the document, or pass the request on to the latter and so inform the interested person; or
4. d) forward to the requesting person a copy of the request addressed to the Committee of Access to Administrative Documents for the latter to assess the possibility of access to the information contained in the document sought.
2 - An authority which has received an application for access to a named document concerning a third party, without prior authorisation from the latter, will request an opinion from the Committee of Access to Administrative Documents on the possibility of disclosing the document, with a copy being sent to the applicant.
3 - An opinion may also be sought where the requested authority has any doubts in regard to the categorisation of the document, the nature of the data to be disclosed or the possibility of access thereto.undefined
4 - Requests for an opinion made under (2) and (3) must be accompanied by a copy of the application and all information and documents that will enable the request to be properly dealt with.

Article 16

Right to complain

1 - The applicant may, within 20 days, submit to the Committee of Access to Administrative Documents a complaint against a decision rejecting expressly the application, the absence of response to an application or a decision restricting the exercise of the right of access.
2 - The Committee of Access to Administrative Documents shall have 30 days in which it will draw up a report on the situation, which will be forwarded, with the necessary conclusions, to all interested persons.
3 - Having received the report mentioned in (2), the public authorities shall, within 15 days, notify the person concerned of its decision, stating the reasons on which it was based, failing which it will be equivalent to absence of response to an application.

Article 17

Appeal

The person concerned may appeal before the administrative courts against a decision on or the absence of response to an application, pursuant to the rules, adapted as appropriate, that apply to the procedures concerning intimation to consult documents or to deliver certified copies.

CHAPTER III

On the Committee of Access to Administrative Documents

Article 18

The Committee

1 - The Committee of Access to Administrative Documents (CADA) is hereby created; it shall be entrusted with watching over the implementation of the provisions of this law.
2 - The CADA shall be a public independent entity attached to the Assembly of the Republic and having its own technical and administrative support services.

Article 19

Membership of CADA

1 - Membership of the CADA shall be as follows:
1. a) one judge member of the Supreme Administrative Court, appointed by the Supreme Council of the Administrative and Fiscal Courts, who shall be the Chairman;
2. b) two members of the Assembly of the Republic elected by the latter one nominated by the parliamentary group of the largest party supporting the government, and the other nominated by the parliamentary group of the largest party in opposition;
3. c) one law professor appointed by the President of the Assembly of the Republic;
4. d) two persons of high standing appointed by the government;
5. e) one representative of each of the Autonomous Regions, respectively appointed by the Governments of the Autonomous Regions;
6. f) one person of high standing appointed by the National Association of Portuguese Municipalities;
7. g) one advocate appointed by the Bar Association;
8. h) one member of the National Committee for the Protection of Computerised Personal Data appointed by the latter.
2 - Any member may at his initiative be replaced by an alternate appointed by the same entity that appointed him
3 - The term of office of members, which is renewable, shall last for two years; however it shall reach an end when a member ceases to perform the functions which led to his appointment
4 - The chairman shall receive the salary and enjoy the benefits to which he is entitled in his capacity as member of the Supreme Administrative Court.
5 - All members, except the Chairman may keep their other functions
6 - Rights and benefits of the members of the CADA shall be set out in the statutory instruments to be adopted for the implementation of this law; the provisions of Article 11 (1), 13 (2)(4) (5), Article 15, Article 16 (1) (2) (a) and (c), and Article 18 (1) of the Law 43/95 of 6 August shall apply to the CADA
7 - Entities having an interest in masters being discussed in a meeting of the CADA may attend that meeting without the right to vote
8 - Members of the CADA shall be sworn in before the president of the Assembly of the Republic within 10 days following the publication of the relevant list in the Diario da Republica, Series I.

Article 20

Powers

1 - The CADA shall have powers to:undefined
1. a) adopt its internal rules;
2. b) examine any complaint submitted to it by the interested persons under this enactment
3. c) give opinions on the access to named documents pursuant to Article 15 (2), at the request of the interested person or the requested department;
4. d) deliver an opinion on the communication of named documents among gencies and departments of the Administration where there is any doubt in regard to the admissibility of such disclosure, save in the cases where access must be authorised under the Law 67/98 of 26 October;
5. e) decide on the system of classification of documents;
6. f) give opinions on the implementation of this law, as well as the preparation and implementation of legislation in related masters, at the request of the government, the Assembly of the Republic or the administration;
7. g) prepare an annual report on the implementation of this law and on its activity, to be forwarded both to the Assembly of the Republic, for publication and examination, and the Prime Minister;
8. h) contribute towards the clarification of, and dissemination of information about, the different forms of access to administrative documents in accordance with the principle of an open administration.
2 - The internal rules of the CADA shall be published in the Diário da República, 2nd series
3 - Opinions shall be drafted by the members of the CADA who may ask for the appropriate assistance of the services thereto.
4 - The opinions shall be published under the terms set out in the internal rules.

Article 21

Co-operation of the administration

It shall be the duty of the members of the staff of the public administration to co-operate with the CADA; otherwise, their disciplinary liability shall be engaged

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